Joseph deMaistre, considered the first conservative by some, took several volumes to argue against a written constitution. Before declaring deMaistre a relic of a reactionary, remember (or perhaps learn that) the United Kingdom has no codified constitution and, except for a minor blip in 1649, has enjoyed consistent stability for much longer than many countries with constitutions. France has had several and while the United States may be on its first, Yankee Dooddle is still a baby compared to John Bull.
deMaistre’s point is that legitimacy comes not from simply writing something down but from collective values. Even the tea party with its propensity for constitution worship understands the importance of collective values: they strive to push up their values into the greater public consciousness. He conceptualized that the nation embodies the collective view. In the 18th century and later, his reasoning made sense, people could only develop commonalities with people by proximity, a challenge even in the smallest hamlet. And with communication so difficult the only rules likely to be followed would be whichever ones people deemed important.
In today’s world, though, its much easier to create or join new communities, it just requires entering a web page rather that crossing a border. In true deMaistre fashion, these communities develop their own standards of conduct and sometimes, but not always, write down their rules. People join these communities willingly, presumably because they identify with the collective value.
While community standards take time to develop, no matter how fast the wifi, identifying the community standards is easier than ever. If we accept deMaistre’s argument that only the collective vision matters, then the usual method to determine the standard requires calling in all manner of sociologists and anthropologists. What if, though, there was an easy, reliable way to understand the collective values and then incorporate them into a constitution. Would such a document have legitimacy?
Iceland has undertaken such an experiment with their new “crowd-sourced” constitution. Apparently, enough people found their original constitution an irrelevant holdover from the days of Danish dominance and moved to create a new one. A council of 25 citizens took suggestions from ideas citizens raised online to draft a constitution; 66% of those who voted in a referendum on the constitution want the new constitution to be based on the crowd-sourced draft.
Such a method stands a much better chance of capturing the nation’s wishes than being holed up in the summertime heat in Philadelphia. The interesting thing about crowd-sourcing is that, assuming a representative sample contributes, any patterns that emerge will reflect the general will, an appropriately eyebrow-raisingly ambiguous term. Let’s assume this constitution does accurately reflect the general will, it seems hard to imagine deMaistre jumping out of his grave in excitement, rolling over in his grave seems much more likely.
This is because deMaistre does make one important exception to his disdain for written rules: the 10 Commandments. he adamantly defers to the written word of God, believing it an extreme act of hubris for a person to believe that he (or she) can create anything of value. Nobility, particularly kings, while not necessarily divine, according to deMaistre, have a special designation from God and so deserve respect. To ignore a previous king’s wishes and replace them with rules created by commoners would be nothing short of unforgivable.
But before the populists amongst us praise iceland for such an inclusive, egalitarian, un deMaistre approach, consider the final hurdle: the Parliament must approve any constitution. That we can reasonably expect approval is besides the point. Clearly, some kind of outside authority is required to give a law legitimacy. We may no longer need God or kings, but all the re-tweets in the world don’t a constitution make.